IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
August 29, 2011
IN RE U. W., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
U. W., DEFENDANT AND APPELLANT.
(Super. Ct. No. JV130370)
The opinion of the court was delivered by: Robie , J.
In re U.W. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The minor entered an admission to misdemeanor battery and was placed on probation with various conditions. Following a restitution hearing, the minor was ordered to pay victim restitution in the amount of $5,108.57.
The minor appeals, claiming the juvenile court erred by ordering restitution for property stolen from the victim by a third person and for failing to state the calculation method it used to determine the amount of restitution. Although we conclude that neither of these claims has merit, we will order a modification of the restitution order to correct a duplication in the billing submitted by the victim and an error in computing the amount of the total restitution to be paid directly to the victim.
FACTUAL AND PROCEDURAL BACKGROUND
According to a statement by the minor, he was in a convenience store with his brother and two friends when they encountered the victim, who made a disparaging comment that included a racial epithet. The minor became engaged in a physical altercation with the victim, during which time a cell phone and other items were stolen from the victim. The minor denied taking anything from the victim and, according to the deputy district attorney, a video of the incident showed that a third person "snatched" the victim's cell phone "as a result of" the assault. Following the altercation, the victim's front tooth was bleeding and loose.
The victim submitted a claim for restitution in the amount of $5,108.57 for dental treatment, medication, and the replacement of his cell phone. At a restitution hearing, the victim testified that he sustained a cracked tooth as a result of the incident and verified that he had incurred $5,108.57 in expenses. He acknowledged that he did not go through his insurance to pay for his injury and, instead, went through "victims of violent crime."
During the hearing, the minor's attorney raised concerns about "double charges for the same treatment." Exhibits were admitted substantiating the various expenses incurred by the victim. The deputy district attorney confirmed that the victim had been compensated for some of his expenses through the victim restitution fund, but as the minor was responsible for reimbursing these amounts, the total amount of restitution remained unchanged.
As relevant here, the minor's attorney argued that the victim failed to mitigate his damages by not utilizing his insurance to pay his medical expenses and that the theft of the victim's cell phone was not reasonably related to the battery committed by the minor.
The juvenile court ordered the minor to pay the full amount of restitution sought by the victim, identifying $1,702.59 as the amount owed directly to the victim and $3,477.98 as the amount paid out by the victim's restitution fund. The court included reimbursement for the victim's cell phone in this amount, noting "it was lost during the course of events set into motion by the minor's conduct and is clearly a result of his conduct."
The minor maintains the juvenile court erred by ordering restitution for the victim's cell phone and by "failing to make a clear statement of [its] calculation method" for setting restitution. Neither of these claims has merit.
I Cell Phone
The minor contends it was improper to require him to pay restitution for the loss of the victim's cell phone because the battery he committed was not the proximate cause of the loss. He relies on People v. Jones (2010) 187 Cal.App.4th 418, in which this court held that principles of proximate cause apply in determining a defendant's liability for restitution. In Jones, we observed a defendant is not liable for an injury resulting from an independent intervening cause even if his or her conduct was a direct cause of the injury. (Id. at p. 427.) However, "'"[i]f an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is 'dependent' and not a superseding cause, and will not relieve defendant of liability."'" (People v. Cervantes (2001) 26 Cal.4th 860, 871; Jones, at p. 427.) "'"'The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough.'"'" (Cervantes, at p. 871.) Furthermore, "'"'[t]he precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.'"'" (Ibid.)
In Jones, the defendant was charged with driving under the influence, and the victim of a collision that occurred while the defendant was committing the offense sought restitution for damage to her car that was incurred, not during the incident, but while she was parking to attend a court appearance. As the matter was remanded on another basis relating to restitution, we also directed the trial court to apply principles of proximate cause in determining whether the defendant should be required to pay restitution for this injury. (People v. Jones, supra, 187 Cal.App.4th at pp. 420-421, 427.)
The attenuated injury at issue in Jones is a far cry from the situation before us in the present matter. Here, during an assault by the minor, the victim became separated from his property, which was a reasonably foreseeable consequence of the minor's conduct. That the victim was unable to recover this property following the incident was not "'"an extraordinary and abnormal occurrence . . . ris[ing] to the level of an exonerating, superseding cause"'" (People v. Cervantes, supra, 26 Cal.4th at p. 871), regardless of whether the minor personally appropriated the property or whether it was lost to the victim for some other reason arising at the time of the incident. On the contrary, the loss of property during an assault is wholly foreseeable. As the minor's conduct was a proximate cause of the theft of the victim's cell phone, the juvenile court properly ordered the minor to reimburse the victim for this cost.
Moreover, irrespective of proximate cause issues, "[t]he juvenile court has wide discretion to select appropriate conditions [of probation] and may impose '"any reasonable condition that is 'fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.'"'" (In re Sheena K. (2007) 40 Cal.4th 875, 889; cf. People v. Anderson (2010) 50 Cal.4th 19, 28-29 [trial court has broad discretion to fashion terms of probation, including ordering restitution above that which is mandated by restitution statute].)
Here, requiring restitution for all losses suffered by the victim as a result of the minor's offense serves to hold the minor accountable for all consequences of his conduct, a deterrent to future criminality. For this reason as well, it was not error for the juvenile court to include the cost of replacing the victim's cell phone in the amount of restitution ordered.
II Statement Of Calculation Method
The minor complains that the juvenile court abused its discretion by "failing to make a clear statement of the calculation method" it used to determine the amount of restitution. It is true that, in setting restitution, a court "must use a rational method that could reasonably be said to make the victim whole, and it may not make an order which is arbitrary or capricious." (People. v. Mearns (2002) 97 Cal.App.4th 493, 498.) However, here, it is clear from the record that the juvenile court simply added up the receipts presented by the victim to verify his expenses, as rational a method as exists for determining the amount of restitution.
The minor acknowledges that receipts were submitted for the expenses incurred by the victim but claims these receipts totaled $4,033.57 instead of $5,108.57. However, the $4,033.57 figure suggested by the minor is based on a misreading of a receipt from one of the dentists who treated the victim. The receipt reflects that $1,075 had been paid and an equal amount remained to be paid, whereas the minor added only $1,075, rather than $2,150, when totaling the receipts. When the additional $1,075 is added to the restitution figure suggested by the minor, the total is $5,108.57 -- the amount sought by the victim and ordered by the court.
The minor also objects that the victim obtained reimbursement from the victim's restitution fund rather than first through his insurance.*fn1 In addition, he contends the victim might not have been entitled to reimbursement through the victim restitution fund due to his criminal history. (See Gov. Code, § 13956, subd. (d)(1).) The only prejudice he asserts based on these claims is that the victim "failed to mitigate damages by going through his insurance carrier." However, as aptly noted by the People, the juvenile court may not consider reimbursement by insurance when fashioning a restitution order and must set restitution in an amount that fully compensates the victim for all losses. (People v. Birkett (1999) 21 Cal.4th 226, 246; In re Brittany L. (2002) 99 Cal.App.4th 1381, 1387-1388.) Consequently, the minor has not shown any prejudice from these claims.
Finally, the minor notes that the restitution order includes double reimbursement for two prescriptions totaling $27.38. He appears to be correct. The documentation of expenses provided by the victim included two prescriptions reflecting the price of the medications, as well as a receipt from a drug store with the same prescription numbers and prices. The restitution order included duplicative reimbursement for these prescriptions and must be corrected.
We note one additional error in the juvenile court's restitution order. The prosecuting attorney informed the court that the victim had been reimbursed $3,477.98 from the victim restitution fund for his expenses. However, when calculating the remainder to be reimbursed to the victim, the prosecuting attorney transposed two numbers, mistakenly deducting this amount from $5,180.57, rather than the $5,108.57 figure the court ordered as total restitution. This resulted in the erroneous addition of $72 to the portion of the total restitution the court directed to be paid to the victim. This, too, must be corrected.
The judgment is modified to strike $27.38 from the total restitution order and an additional $72 from the portion of the total restitution directed to be paid to the victim. In all other respects, the judgment is affirmed.
We concur: NICHOLSON , Acting P. J. MAURO , J.